Strategic Spillovers, 2011 Notre Dame Law School
Strategic Spillovers, Daniel B. Kelly
The conventional problem with externalities is well known: Parties often generate harm as an unintended byproduct of using their property. This Article examines situations in which parties may generate harm purposely, in order to extract payments in exchange for desisting. Such “strategic spillovers” have received relatively little attention, but the problem is a perennial one. From the “livery stable scam” in Chicago to “pollution entrepreneurs” in China, parties may engage in externality-generating activities they otherwise would not have undertaken, or increase the level of harm given that they are engaging in such activities, to profit through bargaining or subsidies. This ...
The Properties Of Instability: Markets, Predation, Racialized Geography, And Property Law, 2011 University of Baltimore School of Law
The Properties Of Instability: Markets, Predation, Racialized Geography, And Property Law, Audrey Mcfarlane
All Faculty Scholarship
A central, symbolic image supporting property ownership is the image of stability. This symbol motivates most because it allows for settled expectations, promotes investment, and fulfills a psychological need for predictability. Despite the symbolic image, property is home to principles that promote instability, albeit a stable instability. This Article considers an overlooked but fundamental issue: the recurring instability experienced by minority property owners in ownership of their homes. This is not an instability one might attribute solely to insufficient financial resources to retain ownership, but instead reflects an ongoing pattern, exemplified throughout the twentieth century, of purposeful involuntary divestment of ...
Don't Burst The Bubble: An Analysis Of The First-Time Homebuyer Credit And Its Use As An Economic Policy Tool, 45 J. Marshall L. Rev. 23 (2011), Sarah J. Webber
The John Marshall Law Review
No abstract provided.
The Market Value Rule Of Damages And The Death Of Irreparable Injury, 2011 Cleveland State University
The Market Value Rule Of Damages And The Death Of Irreparable Injury, Patrick Luff
Cleveland State Law Review
A fundamental principle of remedies is that the remedy should be sufficient to place the injured party in the position he would have occupied but for the wrong suffered. But law and equity come to very different conclusions about what remedy is sufficient to restore a plaintiff to his status quo ante when real property, rare property, and property with high sentimental but low market value are involved. Equity treats the loss of these items as irreparable injury, meaning that damages are not adequate to compensate the victim for their loss. But if the real property is seized in eminent ...
Proposed Exactions, 2011 Texas A&M University School of Law
Proposed Exactions, Timothy M. Mulvaney
In the abstract, the site-specific ability to issue conditional approvals offers local governments the flexible option of permitting a development proposal while simultaneously requiring the applicant to offset the project’s external impacts. However, the U.S. Supreme Court curtailed the exercise of this option in Nollan and Dolan by establishing a constitutional takings framework unique to exaction disputes. This exaction takings construct has challenged legal scholars on several fronts for the better part of the past two decades. For one, Nollan and Dolan place a far greater burden on the government in justifying exactions it attaches to a development ...
Oklahoma Landlords Beware: Miller V. David Grace, Inc. Abandons Caveat Emptor In Residential Leases, 2011 University of Oklahoma College of Law
Oklahoma Landlords Beware: Miller V. David Grace, Inc. Abandons Caveat Emptor In Residential Leases, Jamie M. Powers
Oklahoma Law Review
No abstract provided.
Judicial Takings And State Action: Rereading Shelley After Stop The Beach Renourishment The Very Idea Of Judicial Takings, 2011 Fordham University School of Law
Judicial Takings And State Action: Rereading Shelley After Stop The Beach Renourishment The Very Idea Of Judicial Takings, Nestor M. Davidson
When the Supreme Court recently dipped its toe into longstanding debates about judicial takings in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, the intimation that the Court might finally recognize the doctrine generated a wave of responses. Commentators concerned with the expansion of regulatory takings jurisprudence argued that it would be unwise to apply the Takings Clause to the judiciary; those inclined to defend a more vigorous application of the Clause, perhaps not surprisingly, saw a promising new avenue of vindication. It would be naive to argue that the Stop the Beach Renourishment plurality's logic ...
Collective Action And The Urban Commons, 2011 Fordham University School of Law
Collective Action And The Urban Commons, Sheila R. Foster
Urban residents share access to a number of local resources in which they have a common stake. These resources range from local streets and parks to public spaces to a variety of shared neighborhood amenities. Collectively shared urban resources suffer from the same rivalry and free-riding problems that Garrett Hardin described in his Tragedy of the Commons tale. Scholars have not yet worked up a theory about how this tragedy unfolds in the urban context, particularly in light of existing government regulation and control of common urban resources. This Article argues that the tragedy of the urban commons unfolds during ...
Property's Morale , 2011 Fordham University School of Law
Property's Morale , Nestor M. Davidson
A foundational argument long invoked to justify stable property rights is that property law must protect settled expectations. Respect for expectations unites otherwise disparate strands of property theory focused on ex ante incentives, individual identity, and community. It also privileges resistance to legal transitions that transgress reliance interests. When changes in law unsettle expectations, such changes are thought to generate disincentives that Frank Michelman famously labeled demoralization costs. Although rarely approached in these terms, arguments for legal certainty reflect underlying psychological assumptions about how people contemplate property rights when choosing whether and how to work, invest, create, bolster identity, join ...
A New Experiment On Rational Behavior, 2011 Claremont McKenna College
A New Experiment On Rational Behavior, Myles R. Macdonald
CMC Senior Theses
Behavioral economics is widely recognized as a rising field in economics, one whose discoveries and implications are not yet completed or understood. At the same time, economic theory plays an enormous role in our governmental and legal system. In particular, the Coase Theorem and its implications have affected nearly every area in the field of law and economics. This paper proposes a experimental test of Coasean bargaining in situations using two competitive players whose payoffs depend on minimizing their costs of mitigating the externality. A rational player’s action can be predicted ahead of time, and the rationality of the ...
Indigenous And Tribal Peoples' Rights Over Their Ancestral Lands And Natural Resources: Norms And Jurisprudence Of The Inter-American Human Rights System, 2011 University of Oklahoma College of Law
Indigenous And Tribal Peoples' Rights Over Their Ancestral Lands And Natural Resources: Norms And Jurisprudence Of The Inter-American Human Rights System, Inter-American Commission On Human Rights
American Indian Law Review
No abstract provided.
Self Interested: Protecting The Cultural And Religious Privacy Of Native Americans Through The Promotion Of Property Rights In Biological Materials, 2011 University of Oklahoma College of Law
Self Interested: Protecting The Cultural And Religious Privacy Of Native Americans Through The Promotion Of Property Rights In Biological Materials, Kimberly Self
American Indian Law Review
No abstract provided.
The Game Is Afoot!: The Significance Of Donative Transfers In The Sherlock Holmes Canon, 2011 Texas A&M University School of Law
The Game Is Afoot!: The Significance Of Donative Transfers In The Sherlock Holmes Canon, Stephen R. Alton
This article presents a recently discovered and previously unpublished manuscript written by John H. Watson, M.D., and annotated by Professor Stephen Alton. Dr. Watson’s manuscript records an extended conversation that took place between the good doctor and his great friend, the renowned consulting detective Mr. Sherlock Holmes, regarding issues of gratuitous transfers of property – issues involving inheritances, wills, and trusts – that have arisen in some of the great cases solved by Mr. Holmes. This felicitous discovery confirms something that Professor Alton has long known: these gratuitous transfer issues permeate many of these adventures. Often, the action in the ...
Origins Of The Social Function Of Property In Chile, 2011 Florida International University College of Law
Origins Of The Social Function Of Property In Chile, M C. Mirow
In 1925, Chile was one of the first countries in Latin America to adopt a social-function limitation on property. This study traces the importance of Duguit’s work in the construction of the property provisions of the Chilean Constitution of 1925. This contribution notes the shift from the earlier expressions of property as an absolute right, as found in the Constitution of 1833, to the language of the Constitution of 1925 that submits property to “the maintenance and progress of the social order.” It tracks the debates in the drafting committees to expose the various concepts of property open to ...
Medical Marijuana Zoned Out: Local Regulation Meets State Acceptance And Federal Quiet Acquiescence, Patricia E. Salkin, Zachary Kansler
Sixteen states and the District of Columbia currently permit the medical use of marijuana, yet state statutes fail to account for the challenges that confront municipal planners and officials whose agenda includes public health, safety and welfare of residents, including minor children. The intensity of the problem is perhaps most evident in Los Angeles, where there are approximately 800 dispensaries. Varying statutory approaches are provided for individuals to legitimately acquire the drug - they may grow it themselves, they may obtain it from their primary caregiver, or they may obtain it from a licensed dispensary. This raises a number of land ...
An Evolving Foreclosure Landscape: The Ibanez Case And Beyond, 2011 University of Maine School of Law
An Evolving Foreclosure Landscape: The Ibanez Case And Beyond, Peter R. Pitegoff, Laura S. Underkuffler
Mortgage securitization, subprime lending, a persistently weak housing market, and an explosion of residential mortgage defaults – today’s homeowners and banks face a new and challenging landscape. Recently, courts in several states have issued decisions that alter the terrain for mortgage foreclosures. In Massachusetts, New Jersey, and New York, among other states, courts have dismissed foreclosure actions on the basis of what might seem to be highly technical deficiencies in the pleading or proof. The most well-known–and controversial–in this cluster of cases is U.S. Bank National Ass’n v. Ibanez, decided by the Supreme Judicial Court of ...
Contesting Property Rights: Towards An Integrated Theory Of Institutional And System Change, 2011 Columbia Law Review
Contesting Property Rights: Towards An Integrated Theory Of Institutional And System Change, Katharina Pistor
It is widely recognized that institutions are embedded in social systems and that institutions as well as social systems change over time. Several implications follow: First, institutions cannot be described and analyzed without referring to the system in which they operate; conversely, a system cannot be described without reference to its core institutions. Second, systems foster institutional change and can breed new institutions. Third, institutional change can have systemic implications and may even engender the formation of new systems. In short, the relation between institutions and systems is characterized by complex interactions. A better understanding of the dynamics of institutional ...
Making Coasean Property More Coasean, 2011 Columbia Law School
Making Coasean Property More Coasean, Thomas Merrill, Henry E. Smith
In his pioneering work on transaction costs, Ronald Coase presupposed a picture of property as a bundle of government-prescribed use rights. Not only is this picture not essential to Coase’s purpose, but its limitations emerge when we apply Coase’s central insights to analyze the structure of property itself. This leads to the Coase corollary: in a world of zero transaction costs, the nature of property does not matter to allocative efficiency. However, as with the Coase theorem, the real implication is for our world of positive transaction costs: we need to subject the notion of property to a ...
New Ccp §580e: Deficiency Protection For Certain Short Sales, 2011 Golden Gate University School of Law
New Ccp §580e: Deficiency Protection For Certain Short Sales, Roger Bernhardt
This article discusses the addition of CCP 580e to the current antideficiency statutes, the kinds of borrowers protected and lenders affected. The article coves the new 580e exceptions and the protection it provides in short sales.
“I Coulda Been A Contender”: Lost Profits After A Contract Breach, 2011 Golden Gate University School of Law
“I Coulda Been A Contender”: Lost Profits After A Contract Breach, Roger Bernhardt
This article forewarns litigators and transactionalists of the potential pitfalls regarding lost profits where a seller breaches a contract ti convey property. Considerations cover the various stages of a purchase agreement from negotiating the deal, conducting litigation, and introducing evidence.